Notice and time bars in England and Wales

The general concept of a condition-precedent notice, compared across the main forms, is on the neutral notice and time bars page. The letters themselves are on the England and Wales delay notice templates page. For orientation across the whole jurisdiction, start at the England and Wales extension of time hub.

A notice clause bars the claim only if it makes the relief conditional

The leading statement is Disclosure and Barring Service v Tata Consultancy Services Ltd [2025] EWCA Civ 380. DBS claimed about £1.592m in Delay Payments under cl 6.2.3. The contract required it first to issue a Non-conformance Report, and it never did. The Court of Appeal held that the procedure was a condition precedent to Delay Payments, so DBS recovered nothing on that head. Note which party lost: the doctrine bound the customer, not the supplier. A condition-precedent argument is not reserved for employers.

Coulson LJ's five factors at ¶26 are:

1. (a) Whether a party must comply with a requirement before it is entitled to relief depends on the precise words used, read in their contractual context.
2. (b) To be a condition precedent, the clause needs something that makes the relief conditional on the requirement.
3. (c) Clear words are usually needed, but the clause does not have to call itself a "condition precedent".
4. (d) The link between the requirement and the relief will usually have to be expressed as an obligation ("shall"). That is usually necessary but not sufficient.
5. (e) The requirement does not need a precise time limit in days or weeks. The court's examples are a requirement to act in a "timely" way or "within a reasonable time".

Two limits on that list matter in practice. First, a clear requirement to act "promptly" can be a condition precedent, but the effect of lateness is open. The clause required DBS to provide the report promptly. Coulson LJ held that "A clear requirement to provide the NCR promptly was sufficient for the requirement to be a condition precedent" (¶50), and that "There is no difference between 'timely' and 'promptly' for these purposes" (¶51). Lewison LJ, concurring, agreed that "the absence of a fixed time limit is not incompatible with a requirement being a condition of the contract" (¶82). What remains open is a step taken, but late: DBS served no report at all, so Lewison LJ said that point did not need deciding (¶82). Second, the factors are a framework for reading any notice clause, not a checklist that a clause passes or fails. A clause using "shall" is not a condition precedent if nothing makes the relief depend on the notice, and a clause with no deadline can still bar the claim if the conditionality is plain.

The older starting point is Bremer Handelsgesellschaft mbH v Vanden Avenne-Izegem PVBA [1978] 2 Lloyd's Rep 109 (HL), which DBS calls "the leading case" (¶13); factor (b) builds on Lord Wilberforce's speech in it. Bremer is also cited for a stricter formulation: a precise time plus express words of forfeiture. That remains the safest drafting, but Steria (2007) and DBS ¶26(c) and (e) show it is not the minimum for a time bar to bite.

No magic words are needed, but the notice must come from the claimant

Steria Ltd v Sigma Wireless Communications Ltd [2007] EWHC 3454 (TCC) is the case factor (e) builds on. The sub-contract made the extension "provided that" written notice had been given within a reasonable period. HHJ Stephen Davies held that this was a condition precedent although it stated no consequence for non-compliance (¶¶90 to 91). He also held that genuine ambiguity about whether a notice is a condition precedent should be resolved against that reading, because such a provision benefits only the employer (¶89). That is a principle of construction specific to this kind of clause, not contra proferentem against the drafter.

The same judgment decides who must give the notice. It "must emanate from Steria" (¶82). A minute of a meeting prepared by the other side's representative "would not … by itself" be a valid notice. The words "by itself" matter: minutes are not irrelevant, but the other party's record of a discussion is not the claimant's notice.

Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No 2) [2007] EWHC 447 (TCC) adds two points. On the clause before him, Jackson J read the notice obligation as a duty to "do his best as soon as he reasonably can" (¶82), with the supporting particulars to be included in the notice "if practicable" and otherwise as soon as possible (¶¶79, 81). He also answered the complaint that time bars are unfair: notice provisions "serve a valuable purpose" (¶103). They let the employer investigate while the facts are current and withdraw an instruction once its cost becomes apparent.

On the printed JCT 2024 wording, time has no time bar, but the money notice can forfeit

Under JCT Design and Build 2024, cl 2.24 (Notice by Contractor of delay to progress) requires the Contractor to give notice "forthwith" once delay to progress becomes "reasonably apparent". The Employer may ask for further information within 14 days (cl 2.24.4, new in 2024). Under cl 2.25 it must then notify its decision, fixing a later Completion Date if that is "fair and reasonable", within 8 weeks under cl 2.25.2 (12 weeks in 2016). If the Employer misses that period, there is no deemed grant. The 12-week review after practical completion is unchanged.

On the printed wording, the delay notice is not a condition precedent. (Inference.) The clause uses "shall", which DBS ¶26(d) says is not sufficient on its own. Nothing in cl 2.24 or cl 2.25 makes fixing a new Completion Date depend on the notice having been served on time. The post-completion review also lets the Employer fix a later date on its own review. No reported English judgment has construed the JCT 2024 extension of time provisions, so this is Storia's reading, not a holding. That does not make a late notice harmless. In fixing a fair and reasonable date, the assessor can be expected to take into account delay that a timely notice would have avoided or reduced. (Opinion.)

The money side is different. In FES Ltd v HFD Construction Group Ltd [2024] CSIH 37, the Inner House considered JCT SBC/Q/Scot 2016, with some bespoke amendments (¶[2]). Under cl 4.20.1, reimbursement was "subject to … compliance with the provisions of clause 4.21". The court held that the cl 4.21 notice was a condition precedent to loss and expense. It also held that notice "within a limited (but not certain) time span is a reasonable condition" (¶[26]). Three cautions apply:

• It is Scottish. It is persuasive in England and Wales, not binding. Even so, its reasoning is consistent with the points later set out in DBS ¶26(b) and (e), on wording English JCT users will recognise. (Inference.)
• It was decided on the Scottish SBC 2016, with a "subject to" link. In DB 2024 the Relevant Matters sit at cl 4.21, and the same result there is Storia's reading, not a holding. (Inference.) Find the "subject to" link in your own form before relying on FES.
• It says nothing about the delay notice. It is not authority that the JCT delay notice is, or is not, a condition precedent.

So a contractor can obtain the extension and lose the loss and expense on the same facts, for a purely procedural reason. The 2024 edition adds a further trap. Epidemic (cl 4.21.6) and change in law or guidance (cl 4.21.7) are Relevant Matters only if selected in the Contract Particulars, although the corresponding Relevant Events (cl 2.26.7 and 2.26.8) apply without any selection. On the Standard Building Contract, the 2016 delay clauses are numbered 2.27, 2.28 and 2.29. Check the SBC 2024 numbers against the form before citing them.

NEC4 clause 61.3 is a hard bar, with one exception and a two-step safety valve

NEC4 has no extension of time clause. Time relief is a change to the Completion Date, made through the compensation event machinery. Under NEC4 ECC cl 61.3, the Contractor must notify a compensation event within 8 weeks of becoming aware of it. If it does not, the Prices, the Completion Date and the Key Dates are not changed. Unlike the JCT delay clause, cl 61.3 states its own consequence. That is the "something" DBS ¶26(b) requires, and it is why cl 61.3 operates as a time bar.

The NEC4 exception turns on the kind of event, not on what the Project Manager should have done. In NEC4 the bar does not apply to an event that arises from the Project Manager or Supervisor giving an instruction or notification, issuing a certificate, or changing an earlier decision. The wording about an event the Project Manager should have notified but did not is NEC3's; do not carry it into NEC4.

Deemed acceptance does not happen on its own. Under cl 61.4 the Project Manager replies to a notification within 1 week. If it does not, the Contractor may notify that failure. Only if the failure continues for a further 2 weeks is it treated as acceptance that the event is a compensation event. Cl 62.6 works the same way for quotations, which are due within 3 weeks with a 2-week reply period under cl 62.3. A contractor that waits for silence to turn into acceptance, without serving the second notice, gets nothing from either clause.

The two English forms, side by side

Printed forms only. Bespoke amendment is common (Opinion.), and the executed contract governs.

FIDIC 1999 in an English court: a condition precedent with a generous trigger

In Obrascon Huarte Lain SA v HM Attorney General for Gibraltar [2014] EWHC 1028 (TCC), Akenhead J treated FIDIC 1999 Sub-Clause 20.1 as a condition precedent, which the contractor accepted (¶311). He also construed it reasonably broadly (¶312). The 28 days can run from when it is clear there will be delay (prospectively) or from when delay has actually started (retrospectively). That holding is Akenhead J's alone. The Court of Appeal, [2015] EWCA Civ 712, dismissed the appeal; no ground concerned Sub-Clause 20.1, which the judgment mentions only in quoting cl 4.12 (¶21).

A missed condition-precedent notice does not set time at large

The standard rescue argument runs like this: the employer caused the delay, the contractor's notice was late so no extension is available, therefore the employer has prevented completion and time is at large. That argument comes from Gaymark Investments Pty Ltd v Walter Construction Group Ltd [1999] NTSC 143. It does not work in England. In Multiplex v Honeywell (No 2), Jackson J saw "considerable force in Professor Wallace' criticisms of Gaymark" and had "considerable doubt that Gaymark represents the law of England" (¶103). He did not need to decide the point finally (¶104), but concluded that where compliance with the notice clause was possible and the sub-contractor simply failed to comply, time was not set at large (¶105). A contractor that misses a condition-precedent notice should assume the claim is lost, not that time is at large. The wider prevention analysis is on the prevention principle and time at large page, and the Australian position on Gaymark is on the Australia notice and time bars page.

Amendments turn notices into conditions precedent

Amended JCT contracts commonly convert cl 2.24 into a condition precedent, usually by adding a fixed period and words stating that the Contractor loses its entitlement if it does not comply. (Opinion.) As Steria held and DBS ¶26(e) confirms, a fixed period is not needed: a requirement to notify "within a reasonable time" will bar the claim if the relief is clearly made conditional on it. Anyone who analyses a notice question from the printed form, without the schedule of amendments, is analysing the wrong contract.

Notice and adjudication interact closely, because an adjudicator decides on the record the parties produce. The adjudicating extensions of time page explains how a time-bar defence has to be raised there. For comparison, the Canadian position is stricter: see Canada notice and time bars and Ontario notice and time bars.

Where Storia fits

Every notice question on this page turns on dates your own records must prove: when delay became reasonably apparent, when the Contractor became aware of a compensation event, and who sent what to whom. Storia turns drawings, RFIs, programmes, correspondence and site records into one source-linked project record, built as the work happens. The awareness date in a cl 61.3 argument, or the date a notice was served under cl 2.24, can then be traced back to the document it came from rather than reconstructed after the window has closed.

Sobre este material El contenido de la biblioteca es información general sobre la práctica de las reclamaciones de construcción, no asesoramiento jurídico. El derecho a reclamar, los plazos y el procedimiento se rigen por su propio contrato y por el derecho del lugar donde se ejecuta la obra. Revisado el 13 de octubre de 2026 · Informar de una corrección